[This opinion has been published in Ohio Official Reports at
81 Ohio St.3d 375.]
THE STATE OF OHIO, APPELLANT, v. MATTHEWS, APPELLEE.
[Cite as State v. Matthews, 1998-Ohio-433.]
Criminal procedure—Final order—Appeal—Pursuant to R.C. 2505.02 and
2505.03(A), a trial court’s order granting defendant new trial in a criminal
case is a final appealable order that the state may appeal by leave of court.
Pursuant to R.C. 2505.02 and 2505.03(A), a trial court’s order granting the
defendant a new trial in a criminal case is a final appealable order which the
state may appeal by leave of court. (State v. Huntsman [1969], 18 Ohio
St.2d 206,
47 O.O.2d 440,
249 N.E.2d 40, no longer applicable.)
(No. 96-1576—Submitted December 2, 1997—Decided April 15, 1998.)
APPEAL from the Court of Appeals for Cuyahoga County, No. 70587.
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{¶ 1} On October 16, 1989, shortly after 2:30 a.m., Wayne Price was shot
at the King-Kennedy housing project in Cleveland. Theodore Roulette, a drug user
at the time, had gone to the King-Kennedy housing project on that same day to get
some syringes. Roulette testified that he observed defendant-appellee Rasheem
Matthews standing four to six feet from Price before the shooting. Roulette saw
Price fall after being shot. Roulette identified defendant as the person who
murdered Wayne Price.
{¶ 2} In March 1990, Roulette was arrested for theft and incarcerated in the
Cleveland Jail. While in jail, Roulette met Billy Price, brother of the victim, who
encouraged Roulette to give a statement to the police regarding the murder of
Wayne Price. Roulette went to the Cleveland Police Department and gave them a
complete statement that he had witnessed the murder.
{¶ 3} Charles Neal Paxton, a cellmate of defendant’s, testified that
defendant told him that he shot and killed the victim, Price, because the defendant
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had given Price some drugs on credit and later found out that Price had been badmouthing him. Paxton gave a written statement of the defendant’s admission on
May 10, 1990.
{¶ 4} After trial, the jury was unable to reach a verdict, and the court
declared a mistrial on June 22, 1990. At retrial on August 3, 1990, the defendant
was convicted of the murder of Wayne Price. Defendant was sentenced on August
7, 1990. Defendant filed an appeal on September 5, 1990, and a motion for a new
trial on November 27, 1990, which was denied on December 12, 1990. Defendant
appealed the denial of his motion for new trial on January 7, 1991.
{¶ 5} On April 19, 1991, the defendant filed a motion in the trial court
claiming the discovery of new exculpatory evidence, seeking an order finding that
he had been unavoidably prevented from discovering the evidence, and again
requesting a new trial. This motion was denied on July 1, 1991, but defendant did
not appeal this denial.
{¶ 6} On June 1, 1992, the Cuyahoga County Court of Appeals affirmed
defendant’s conviction and the denial by the trial court of his first motion for a new
trial. 80 Ohio App.3d 409,
609 N.E.2d 574. This court declined to review
defendant’s appeal. State v. Matthews (1992),
65 Ohio St.3d 1440,
600 N.E.2d 683.
{¶ 7} On July 16, 1992, the defendant again moved the trial court for an
order finding that he had been unavoidably prevented from discovering new
evidence, again requesting a new trial. This motion was denied on September 25,
1992. In June 1995, defendant filed another motion claiming more new evidence
and again seeking a new trial.
{¶ 8} This final motion for a new trial alleged that the Assistant County
Prosecuting Attorney failed to disclose to defense counsel a secret deal with one of
the state’s principal witnesses, Charles Paxton. Defendant claimed that the failure
to disclose the secret deal with Paxton resulted in prejudice to defendant, since his
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counsel was not able to attack Paxton’s credibility in front of the jury by
establishing that Paxton had been promised something for his testimony.
{¶ 9} On April 2, 1996, the trial court granted defendant’s motion for a new
trial. The state filed a motion for leave to appeal in the court of appeals. On May
28, 1996, the court of appeals denied the state’s motion, stating, “Motion by
appellant for leave to appeal pursuant to R.C. 2945.67 is denied.”
{¶ 10} This cause is now before this court upon the allowance of a
discretionary appeal.
__________________
Stephanie Tubbs Jones, Cuyahoga County Prosecuting Attorney, George J.
Sadd and Randi Marie Ostry, Assistant Prosecuting Attorneys, for appellant.
__________________
Lundberg Stratton, J.
{¶ 11} Section 3(B)(2), Article IV of the Ohio Constitution establishes that
courts of appeals have “such jurisdiction as may be provided by law to review and
affirm, modify, or reverse judgments or final orders of the courts of record inferior
to the court of appeals within the district ….”
{¶ 12} R.C. 2505.02 provides that “[a]n order that affects a substantial right
in an action which in effect determines the action and prevents a judgment, an order
that affects a substantial right made in a special proceeding or upon a summary
application in an action after judgment, or an order that vacates or sets aside a
judgment or grants a new trial is a final order that may be reviewed, affirmed,
modified, or reversed, with or without retrial.” (Emphasis added.)
{¶ 13} Further, R.C. 2505.03 provides:
“(A) Every final order, judgment, or decree of a court … may be reviewed
on appeal by a court of common pleas, a court of appeals, or the supreme court,
whichever has jurisdiction.” (Emphasis added.)
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{¶ 14} R.C. 2505.02 makes the granting of a new trial a final order. R.C.
2505.03(A) states that “[e]very final order” may be reviewed on appeal. Thus, at
first glance, the resolution of the issue seems clear. However, in the past, this court
has arrived at a different conclusion. In State v. Huntsman (1969), 18 Ohio St.2d
206,
47 O.O.2d 440,
249 N.E.2d 40, this court found that an order granting a
defendant a new trial was a “final order” within the meaning of those words as used
in Section 3, Article IV of the Ohio Constitution and in R.C. 2953.02, and therefore
appealable.
Id. at 210-211,
47 O.O.2d at 443,
249 N.E.2d at 43. However, this
court found that the thrust of R.C. 2953.02 to 2953.13 clearly indicated that the
General Assembly was contemplating appeals by the defendant in a criminal action
and not by the state. Thus, the court held that R.C. 2953.02 to 2953.14 inclusive
do not provide for an appeal on behalf of the state from the action of the trial judge
in granting a defendant’s motion for a new trial.
{¶ 15} However, Huntsman dealt with R.C. Chapter 2953, while the case at
bar involves R.C. 2505.02. Further, while the Huntsman court differentiated
between appeals under R.C. Chapters 2953 and 2505, finding that R.C. Chapter
2505 covered civil appeals, this court has since applied R.C. 2505.02 to criminal
cases. See State v. Davidson (1985), 17 Ohio St.3d 132, 17 OBR 277,
477 N.E.2d
1141, where this court held that an order granting a motion seeking to suppress
evidence “[is] a final appealable order within the meaning of R.C. 2505.02.”
Id. at
135, 17 OBR at 280,
477 N.E.2d at 1145. Therefore, we have already implicitly
held that R.C. 2505.02 applies to all appeals, civil and criminal.
{¶ 16} In this case, the court of appeals denied leave to appeal pursuant to
R.C. 2945.67, which provides that “[a] prosecuting attorney … may appeal as a
matter of right any decision of a trial court in a criminal case … which grants a
motion to dismiss all or any part of an indictment, complaint, or information, a
motion to suppress evidence, or a motion for the return of seized property or grants
post conviction relief … and may appeal by leave of the court to which the appeal
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is taken any other decision, except the final verdict, of the trial court in a criminal
case ….” R.C. 2945.67(A).
{¶ 17} R.C. 2945.67(A) is unique to criminal cases, dealing with procedural
aspects that occur only in criminal cases, and draws a distinction between an appeal
as of right and an appeal by leave. This statute enumerates four trial court decisions
from which the state may appeal as a matter of right: a motion to dismiss all or any
part of an indictment, complaint, or information, a motion to suppress evidence, a
motion for the return of seized property, or a motion granting postconviction relief.
R.C. 2945.67(A). All other appeals are by leave at the discretion of the court of
appeals, except, of course, that the state may not appeal a final verdict.
{¶ 18} One could argue that R.C. 2945.67, as enacted November 1, 1978,
implicitly overruled Huntsman and expanded state appeals by leave to include
orders granting new trials. To clarify any lingering confusion, we hold that
pursuant to R.C. 2505.02 and 2505.03(A), a trial court’s order granting the
defendant a new trial in a criminal case is a final appealable order. However, the
state may appeal from that order only by leave of the court to which the appeal is
taken, pursuant to R.C. 2945.67(A). State v. Huntsman, 18 Ohio St.2d 206,
47
O.O.2d 440,
249 N.E.2d 40, is no longer applicable.
{¶ 19} A motion for a new trial is addressed to the sound discretion of the
trial court, and the court’s ruling on the motion will not be disturbed on appeal
absent an abuse of discretion. State v. Schiebel (1990), 55 Ohio St.3d 71,
564
N.E.2d 54, paragraph one of the syllabus. The defendant’s first motion for new
trial alleged that Roulette later received consideration for his testimony after both
he and the prosecution denied the existence of a deal. The second motion for new
trial alleged that a man named Raymond Marks came forward on April 4, 1991 to
confess that he was the individual who murdered Wayne Price. The third motion
for new trial alleged that Roulette provided a sworn statement recanting his prior
trial testimony where he identified defendant as the murderer. Finally, the fourth
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motion for new trial was based on a combination of Roulette’s alleged recantation,
Roulette’s alleged secret deal with the state, and newly discovered evidence of
Paxton’s alleged secret deal with the state.
{¶ 20} Granting or denying the state’s motion for leave to appeal in a
criminal case is solely within the discretion of the reviewing court. State v. Fisher
(1988), 35 Ohio St.3d 22,
517 N.E.2d 911, paragraph two of the syllabus; State v.
Ferman (1979),
58 Ohio St.2d 216,
12 O.O.3d 206,
389 N.E.2d 843. Although the
court of appeals in its 1992 affirmance of defendant’s convictions and the denial of
defendant’s first motion for new trial did indeed address the possibility of secret
deals between the state and Roulette and Paxton, it was not until after defendant
was convicted that Roulette and Paxton actually would have received any leniency.
Thus, while these early references to the alleged deals with Roulette and Paxton
could be seen as barring the granting of defendant’s final motion for new trial due
to considerations of res judicata, see State v. Perry (1967),
10 Ohio St.2d 175,
39
O.O.2d 189,
226 N.E.2d 104, that was for the trial court to decide in granting the
final motion for new trial. From the numerous and varied motions for new trial
alleging secret deals, recantations, and even another possible killer, the facts of this
case are so murky that we cannot determine whether the court of appeals should
have granted leave to appeal.
{¶ 21} We are now clarifying that under R.C. 2505.02 and 2505.03(A), a
trial court’s order granting the defendant a new trial in a criminal case is a final
appealable order which the state may appeal by leave of court. Thus, at the time
this matter was before the court of appeals, it was unclear whether Huntsman was
the law and whether orders granting a new trial in criminal cases were final
appealable orders.
{¶ 22} In this case, the appellate court’s decision consisted of only one line:
“Motion by appellant for leave to appeal pursuant to R.C. 2945.67 is denied.” The
court of appeals’ order overruling the state’s motion for leave to appeal fails to
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January Term, 1998
reveal the basis upon which the court relied. It is unclear whether the court of
appeals denied leave to appeal under R.C. 2945.67 because it assumed that an order
granting a motion for a new trial was not a final order appealable by the state or
whether the court simply denied leave under its discretionary authority. Therefore,
because this court now clarifies that an order granting a new trial in a criminal case
is a final appealable order, we remand to the court of appeals for further proceedings
not inconsistent with this opinion.
Judgment reversed
and cause remanded.
RESNICK and PFEIFER, JJ., concur.
MOYER, C.J., concurs in the syllabus and judgment.
DOUGLAS and F.E. SWEENEY, JJ., dissent.
COOK, J., dissents.
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DOUGLAS, J., dissenting.
{¶ 23} I respectfully dissent. The granting of a new trial in a criminal case
to a defendant is a final order which may be appealed by the state as a matter of
right. The last prong of R.C. 2505.02 is clear and unambiguous: “An order that
affects a substantial right in an action which in effect determines the action and
prevents a judgment, an order that affects a substantial right made in a special
proceeding or upon a summary application in an action after judgment, or an order
that vacates or sets aside a judgment or grants a new trial is a final order that may
be reviewed, affirmed, modified, or reversed, with or without retrial.” (Emphasis
added.) Since such an order is final, it, without more, becomes appealable pursuant
to R.C. 2505.03(A). These sections of the code need to be applied—not interpreted.
{¶ 24} Accordingly, I believe that both the majority opinion and the dissent
of Justice Cook are in error. This is not an R.C. 2945.67 case or issue. The
language “and may appeal by leave of the court” in R.C. 2945.67 refers only to
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those orders which are not final in and of themselves and which are not, pursuant
to the statute, appealable as of right. To discuss R.C. 2945.67 in the context of a
clear R.C. 2505.02-.03 case only adds to what the majority describes as “lingering
confusion.” Today we turn “lingering confusion,” if there was any, into “rampant
confusion.” I am compelled to dissent.
F.E. SWEENEY, J., concurs in the foregoing dissenting opinion.
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COOK, J., dissenting.
{¶ 25} I agree with the majority that, pursuant to R.C. 2945.67(A), the grant
of a motion for new trial is a final order which the state may appeal only by leave
of court. However, I do not believe it is judicially prudent to address our decision
in Huntsman. Nor do I believe it is necessary to remand the cause to the appellate
court. I therefore respectfully dissent.
{¶ 26} In State v. Huntsman (1969), 18 Ohio St.2d 206,
47 O.O.2d 440,
249
N.E.2d 40, this court held that former R.C. 2953.02 (providing for review of
judgments or final orders in criminal cases) did not afford the state a right to appeal
from a trial court order granting the defendant a new trial. In reaching this
conclusion, the court stated:
“When Section 2953.05 was amended in 1960, the General Assembly again
evidenced that it was contemplating only appeals by defendants pursuant to
Sections 2953.02 to 2953.13, inclusive, of the Revised Code.” Id. at 213,
47 O.O.2d
at 444,
249 N.E.2d at 44-45.
{¶ 27} Many of the code sections relied upon in Huntsman have since been
repealed. Moreover, discussion and application of R.C. 2945.67, which specifically
addresses the situation at hand, is absent from the Huntsman analysis. As a result,
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January Term, 1998
I believe that the decision in Huntsman was correct in the context in which it was
made: Former R.C. 2953.02 did not provide for appeals by the state.1
{¶ 28} By analyzing Huntsman in the context of the case at bar, the majority
creates the appearance that it bears some relevance to the issue at hand.2 It is not
the case that Huntsman is “no longer applicable,” but that it is not applicable to the
present situation. For those members of the bar depending upon this court for
guidance, I am concerned that the majority’s treatment of Huntsman misrepresents
both its status as legal precedent and the legal basis for reaching our conclusion.
{¶ 29} In Hunstman, this court determined that an order granting a new trial
is a final appealable order in the criminal, as well as the civil, context, and that
“[s]ections 2953.02 to 2953.14, inclusive, of the Revised Code, do not provide for
an appeal on behalf of the state from the action of a trial judge in granting a
defendant’s motion for a new trial.” Id.,18 Ohio St.2d 206,
47 O.O.2d 440,
249
N.E.2d 40, syllabus. These propositions are still good law. By engaging in this
tangential analysis, the majority creates an opportunity for misconstruction of its
holding.
{¶ 30} As for the remand to the court of appeals, I believe it to be
unnecessary. By its assessment that the appellate court’s decision may have been
based on a view that it lacked jurisdiction, the majority discounts the well-settled
notion that a reviewing court does not presume error by an inferior court. Rather,
we are to indulge in all reasonable presumptions consistent with the record in favor
of lower court decisions on questions of law, Fletcher v. Fletcher (1994), 68 Ohio
1. Those sections of R.C. Chapter 2953 that are discussed in Huntsman and are currently in
existence, R.C. 2953.03, 2953.07 to 2953.11, and 2953.13, still do not provide for appeals by the
state from any final order except that of sentencing. See R.C. 2953.08(B). R.C. 2953.14, also
discussed in the Huntsman opinion, today provides, as it did in 1969, for appeals by the state from
adverse decisions rendered by courts superior to the trial court.
2. The appellee did not file a brief or argue in this case. Neither the appellant’s brief nor the order
of the court of appeals mentions Huntsman.
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St.3d 464, 468, 628 N.E.2d 1343, 1347, and presume that the court of appeals
properly exercised its discretion in denying the state leave to appeal. Accordingly,
I would affirm the decision of the court of appeals.
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